Photo of James Hays

James Hays is a partner in the firm's New York office and a leader of the Traditional Labor Law Team.

The new year begins with one of the most anticipated labor cases on the high court’s docket in decades. On January 10, 2023, the U.S. Supreme Court heard oral argument in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174 to decide whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the U.S. Supreme Court finds that such conduct is not preempted and may be litigated in state court, such a ruling would go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power toward employers during these disputes. 

Continue Reading SCOTUS Hears Oral Argument on Whether NLRA Preempts State Court Lawsuits Against Unions for Property Damage Caused During Labor Disputes

On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) abandoned the employer-friendly access standard for off-duty employees of an onsite contractor that was adopted under the Trump Administration in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 368 NLRB No. 46 (2019)(“Bexar County I). Given a chance to revisit the Trump-era standard, the current Board, seeing “no reason to attempt to rehabilitate a standard that fundamentally fails off-duty contractor employees by almost always denying them their right to engage in Section 7 activities at their workplace,” rejected the access standard from Bexar County I and reinstated the previously court-approved (and union advantageous) standard announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244. See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 372 NLRB No. 28 (2022) (Bexar County II).

Continue Reading NLRB Provides Off-Duty Contractor Employees With Property Access to Engage in Section 7 Activity

As we previously predicted, the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in American Steel Construction, Inc. (available here) and yet again overruled another case decided under the Trump Administration.

Continue Reading NLRB Confirms a Return to Union Gerrymandered Bargaining Units

On October 31, 2022, Jennifer Abruzzo, the NLRB’s General Counsel (GC), released a memorandum regarding employer use of electronic surveillance and automated management, and its potential interference with employees’ ability to confidentially engage in protected activity under Section 7 of the Act. Opining that “[a]n issue of particular concern to me is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose,” the GC signaled an increased scrutiny of certain surveillance methods utilized by employers and further urged the Board to protect employees from intrusive electronic monitoring “and automated management practices that would have a tendency to interfere with Section 7 rights” by “zealously” enforcing existing law and by proactively applying settled labor-law principles in a “new way.”

Continue Reading Caught on Video No More? NLRB General Counsel Releases Memo Urging Board to Curtail Employer Use of a Variety of Surveillance Technologies in Workplace

The constant fluctuations in precedent at the National Labor Relations Board (“NLRB” or the “Board”) continue as the Board overrules another case decided under the Trump Administration. This time the NLRB has set its sights on the collection of union dues following the expiration of a collective bargaining agreement. On October 3, 2022, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center and Local Joint Executive Board of Las Vegas (available here) overruling the 2019 case of the same name.

Continue Reading NLRB Revisits Union Dues Checkoff Rule

On the heels of the Labor Day weekend, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking and request for comments (NPRM) that would once again change the joint employer legal standard. The proposed regulations roll back the employer-friendly rule the NLRB finalized during the Trump administration.

Continue Reading NLRB Releases Proposed Joint Employer Rule Rolling Back Trump-Era Standard

On July 13, 2022 the National Labor Relations Board (“NLRB” or the “Board”) announced that by May 25th, 2022 the number of union representation petitions filed with the Board surpassed the total number of petitions filed in all of Fiscal Year 2021. Representation petitions are requests to have the NLRB conduct an election to determine if employees wish to be represented by a union. During the first nine months of Fiscal Year 2022 (October 1-June 30), 1,935 representation petitions were filed with the Board. This represents a 56% increase from the 1,240 filed in the first three quarters of FY2021. The Board also noted that, in addition to the rise in petitions, the number of unfair labor practice charges increased from 11,451 to 13,106 – 14.5% – during that same time period.

Continue Reading Union Election Petitions on the Rise, Total Number of FY21 Petitions Eclipses in First Three Quarters of FY22

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions.  Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws.  Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination, potentially signaling similar actions related to the use of artificial intelligence in the employment context.  Below are some key takeaways on the new guidance.

Continue Reading EEOC Issues Guidance Regarding How Employer Software and Artificial Intelligence May Discriminate Against Individuals With Disabilities

In contravention of decades-old precedent, employers may be required to recognize unions without a secret ballot election, thereby denying employers the opportunity to protect the private choice of their employees. The National Labor Relations Board’s (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, argued that the Board should reinstate the recognition process and expand the ability of the Board to order an employer to bargain with a union even without its winning an election.

Continue Reading NLRB General Counsel Seeks to Reinstate Radical Standard for Union Recognition and Restrict Employer Free Speech During Corporate Organizing Campaigns

Under well-settled, decades-old precedent, employers have historically been free to hold mandatory “captive audience” meetings to educate employees, share views on unionization, and discuss what employees’ rights are with respect to the same. However, on April 7, 2022, the NLRB General Counsel (“GC”) issued a memorandum stating her intent to ask the National Labor Relations Board (“Board”) to reconsider this rule, and overturn 75 years of precedent allowing an employer to hold “captive audience” meetings. Notwithstanding the plain wording of Section 8(c) of the NLRA, the GC takes the position that such mandatory meetings are inconsistent with employees’ rights under the NLRA. According to the GC, “captive audience” meetings chill employees’ Section 7 rights to refrain from listening to employer speech regarding unionization. She argues that employers typically use threats to coerce employees to attend mandatory meetings, and therefore these meetings fall outside the scope of statutory and constitutional free speech protections. Instead, she will urge the Board to require that an employer must make clear to employees that their attendance at these meetings is truly voluntary. While this memorandum does not change current law, it signals the GC’s intent to bring unfair labor practice charges against an employer for holding “captive audience” meetings in order to bring the issue before the Board.
Continue Reading NLRB General Counsel Will Ask the Board to Find That Captive Audience Meetings Violate the NLRA

The National Labor Relations Board (Board or NLRB) could reverse a 2019 decision holding that honest, albeit mistaken, classification decisions and announcements to employees do not violate the National Labor Relations Act (the NLRA). On March 17, 2022, General Counsel of the NLRB issued a Complaint against Deco Logistics, Inc. d/b/a Container Connection and its affiliates (collectively Deco Logistics), alleging that Deco Logistics violated the NLRA by misclassifying drivers as independent contractors as well as other conduct that allegedly violated the workers’ Section 7 rights to organize, such as interrogating a driver about union activities and retaliating against drivers for assisting the union’s organizing campaign. The Complaint seeks an affirmative order that Deco Logistics reclassify its independent contractors as employees, and compensation for any harm the workers incurred as a result of the misclassification as independent contractors.
Continue Reading NLRB to Decide Whether Misclassification Is Standalone Violation of the NLRA